Neil Vidmar

The Evolution of the American Jury

The right to a trial by jury is deeply embedded in the American democratic ethos. The Fifth, Sixth, and Seventh Amendments to the U.S. Constitution guarantee the right to a jury for all criminal cases and in all civil suits exceeding twenty dollars. In addition, the constitution of each state guarantees a trial by jury.1 In contrast, England, Scotland, Wales, and Canada do not have as liberal a standard concerning trial by jury. In those countries, persons accused of nonindictable crimes—less serious crimes for which the prescribed punishment is less than two years in prison—do not have the right to trial by jury. Indeed, Blackstone, the 18th century English scholar of law, was at pains to point out that in English law, trial by jury was a privilege, not a right. These other countries also make less frequent use of the civil jury; indeed, outside North America, the civil jury has all but disappeared. Estimates are that 80% of all jury trials worldwide take place in the United States.

Today and Tomorrow: A Summary View and Judgment

We began this book by observing that the jury is a unique and fascinating institution that has evoked both praise and condemnation throughout its long history. Our working assumption has been that many key issues in the controversy surrounding the contemporary jury are subject to systematic examination by the methods of social science. It is time to take stock. What do we know? What else should be considered? What does the future hold?

From Trial by Ordeal to Trial by Jury

The year was 1670. The place was the Old Bailey in London, England. The defendants were William Penn, subsequently the founder of the Colony of Pennsylvania, and William Mead. The indictment stated that Penn and Mead along with “divers other persons ... unlawfully and tumultuously assembled and congregated themselves together in Gracechurch Street, in London.” Further, it asserted that Penn, aided and abetted by Mead, preached and spoke to the people assembled in the street “by reason whereof a great concourse and tumult of people a long time did remain and continue, in contempt of the king and his law, and to the great terror and disturbance of many of his liege people and subjects.”1

Mad or Bad? Juries and the Defense of Insanity

One of the most controversial jury verdicts in recent history was delivered on June 21, 1982, for the trial of John Hinckley, Jr. On the gray, drizzly day of March 30, 1981, as President Ronald Reagan was leaving the Washington Hilton Hotel after giving a speech, Hinckley managed to shoot and wound the President, White House Press Secretary James Brady, District of Columbia police officer Thomas K. Delahanty, and U.S. Secret Service agent Timothy McCarthy. A camera operator covering Reagan’s departure from the Hilton captured Hinckley’s shooting spree on videotape. The graphic footage was played again and again on television broadcasts nationwide.

The Jury and the Executioner

On the morning of May 25, 1979, John Spinkellink was strapped immobile in the state of Florida’s three-legged chair named “Old Sparky.” His head was covered by a leather hood and a heavy strap bound his chin, which effectively gagged him. The curtain to the death chamber was raised at 10 A.M., making him visible to the thirty-two witnesses. “He looked terrified and helpless,” said one of the witnesses. Then a flap on the hood was lowered in front of his eyes.

A Jury of Peers—But from an Unbiased Community

On November 24, 1963, just two days after the nation had been shocked by the assassination of President John F. Kennedy, Americans watched in horror as Jack Ruby shot and killed accused assassin Lee Harvey Oswald in a Dallas police station garage, in full view of television cameras. The world-famous attorney Melvin Belli represented Ruby at his jury trial. One of Belli’s first actions on behalf of Ruby was to try to get the trial moved out of Dallas. Belli later recounted his reasons for this in a special hearing to change the location of the trial: nDallas was a cesspool of prejudice. Out of that pool, I argued, we couldn’t get a jury that was unbiased. How was it biased? It was my primary contention that the city of Dallas itself would be on trial as much as Jack Ruby was. Dallas had been shamed by the assassination of President Kennedy, doubly shamed by letting the President’s assassin be killed in the Dallas police station itself. And so, a Dallas jury had to convict Ruby in order to acquit Dallas.1

Jurors’ Views of Rape: Anger and Ambivalence

Initial press reports of the event shocked the nation.1 According to the police, a woman had been raped by several men in a New Bedford, Massachusetts tavern, Big Dan’s, while onlookers cheered. The woman, a 21-year-old mother of two, had reportedly gone into Big Dan’s to buy cigarettes. After having a drink, the woman tried to leave, but instead, a number of men dragged her to the pool table, stripped her, and raped her or forced her to engage in other sexual acts, while others watched and shouted “go for it!”

Jury Competence: Twelve People of Average Ignorance?

In the fall of 1982, lawyer Norman Perl, along with three investigators from his law firm and former Aetna Insurance adjuster Willard Broune, stood trial in Minnesota on nineteen counts of mail fraud and conspiracy.1 Perl, representing women injured by Dalkon Shield contraceptive devices, had filed many claims against Aetna Insurance and the A.H. Robins Co., developer of the Shield. Perl had placed Broune on his own payroll at the same time that he was negotiating with him as the adjuster of the women’s cases. The government charged Perl with fraud on the grounds that the financial relationship with Broune negated adversarial responsibility to give “loyal and undivided services” to his two clients, that is, the women and the insurance company. The case was complicated by the fact that the government did not allege that Perl agreed to settlements that were too low for his clients or that Broune settled for amounts that were higher than Aetna should have paid. Lasting eleven weeks, the trial was marked by acrimony between prosecution and defense lawyers and arguments about the admissibility of evidence. Everyone, lawyers and observers, agreed that it was a complicated case.

The New “Science” of Jury Selection

In June of 1980, after 15 weeks of testimony, a federal jury deciding an antitrust suit awarded M.C.I. Communications Corporation

Six versus Twelve, All versus Some

600 million, to be paid by the American Telephone and Telegraph Company. Antitrust awards are automatically tripled for punitive purposes, which meant that M.C.I. was to receive the largest antitrust judgment ever—the stunning amount of